Branch v. Grannis, et al.,

Filing 69

FINDINGS and RECOMMENDATIONS to Deny Defendant Umphenour's 49 Motion to Dismiss; Objections, if any, Due in Twenty Days signed by Magistrate Judge Gary S. Austin on 8/23/2012. Referred to Judge Anthony W. Ishii. Objections to F&R due by 9/17/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

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Plaintiff,

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1:08-cv-01655-AWI-GSA-PC
FINDINGS AND RECOMMENDATION TO
DENY DEFENDANT UMPHENOUR’S
MOTION TO DISMISS
(Doc. 49.)

v.
N. GRANNIS, et al.,

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OBJECTIONS, IF ANY, DUE IN TWENTY
DAYS

Defendants.
/

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Plaintiff, Louis Branch (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. Now pending before the Court is defendant Umphenour’s

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motion to dismiss this action as barred by the statute of limitations. (Doc. 49.)

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I.

RELEVANT PROCEDURAL HISTORY

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Plaintiff filed the Complaint commencing this action on July 7, 2008. (Doc. 1.) This action

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now proceeds on the Second Amended Complaint, filed on August 25, 2010, against defendant

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Umphenour and Does 1 and 2 for failure to protect Plaintiff in violation of the Eighth Amendment,

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and defendant Umphenour for retaliation in violation of the First Amendment.1 (Doc. 26.) On

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October 6, 2011, defendant Umphenour (“Defendant”) filed a motion to dismiss. (Doc. 49.) On

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October 27, 2011, Plaintiff filed an opposition to the motion. (Doc. 55.) On November 11, 2011,

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Plaintiff has not sufficiently identified defendants Does 1 and 2 to enable service of process.

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Defendant filed a reply. (Doc. 57.) On November 22, 2011 and November 28, 2011, Plaintiff filed

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two surreplies. (Docs. 59, 62.) Defendant’s motion to dismiss is now before the Court.

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II.

PLAINTIFF’S ALLEGATIONS

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Plaintiff is currently incarcerated at Solano State Prison in Vacaville, California. The events

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at issue occurred at Avenal State Prison (“ASP”) in Avenal, California, when Plaintiff was

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incarcerated there.

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Plaintiff alleges that in May 2004, he was transferred to ASP. In June 2004, Plaintiff

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submitted a sworn declaration that he had witnessed an inmate be battered and assaulted by an ASP

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Officer. Defendant Umphenour confronted Plaintiff and said he “would be ‘dealt with’ for

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submitting ‘a false declaration against an officer.’” (2ACP, Doc. 26 at 9.) Immediately, ASP

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officials caused Plaintiff to be transferred five times in two weeks “amid the calumny and obloquy

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that [p]laintiff was a ‘snitch’ and a ‘baby raper.’” (Id.) Each of Plaintiff’s verbal and written pleas

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resulted in Plaintiff being transferred to another facility or building. These transfers “virtually

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guaranteed” that Plaintiff’s grievances would not be responded to because they would be lost,

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forgotten, misplaced, or not investigated due to being re-routed. (Id. at 10.) After Plaintiff was

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transferred to Building 250 he was stabbed four times, bludgeoned about the head, and beaten to

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semi-consciousness while defendants Umphenour and Does 1 and 2 watched without intervening.

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Plaintiff was then hospitalized and placed in segregation. Defendant Umphenour was to gather and

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inventory Plaintiff’s personal property. In August 2004, Plaintiff was transferred to Mule Creek

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State Prison (“MCSP”). When Plaintiff arrived at MCSP, officials received his personal property

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and documented that it had been sabotaged.

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Plaintiff requests monetary damages.
III.

MOTION TO DISMISS

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A.

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“The focus of any Rule 12(b)(6) dismissal . . . is the complaint,” Schneider v. California

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Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ,” Fed. R. Civ. P. 8(a)(2).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

Rule 12(b)(6) Motion to Dismiss -- Legal Standard

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to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls

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short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice,” Iqbal at 1949 (citing

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Twombly, 550 U.S. at 555), and courts “are not required to indulge unwarranted inferences,” Doe

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I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct.

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at 1949.

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B.

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Federal law determines when a claim accrues, and “under federal law, a claim accrues “when

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the plaintiff knows or has reason to know of the injury which is the basis of the action.” Lukovsky

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v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (quoting Two Rivers v.

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Lewis, 174 F.3d 987, 991 (9th Cir. 1999)); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). In

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the absence of a specific statute of limitations, federal courts should apply the forum state’s statute

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of limitations for personal injury actions. Lukovsky, 535 F.3d at 1048; Jones v. Blanas, 393 F.3d

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918, 927 (2004); Fink, 192 F.3d at 914. California’s statute of limitations for personal injury actions

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requires that the claim be filed within 2 years. Cal. Code Civ. Proc. § 335; Jones, 393 F.3d at 927.

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In actions where the federal court borrows the state statute of limitation, the court should also borrow

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all applicable provisions for tolling the limitations period found in state law. See Hardin v. Straub,

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490 U.S. 536, 539, 109 S. Ct. 1998, 2000 (1989). Pursuant to the California Code of Civil Procedure

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section 352.1, a two-year limit on tolling is imposed on prisoners. Section 352.1 provides, in

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pertinent part, as follows:

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(a) If a person entitled to bring an action, . . . is, at the time the cause
of action accrued, imprisoned on a criminal charge, or in execution
under the sentence of a criminal court for a term less than for life, the
time of that disability is not a part of the time limited for the
commencement of the action, not to exceed two years.

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Statute of Limitations - Legal Standard

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Thus, incarcerated plaintiffs have four years from the date that the cause of action accrued

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in which to file suit, if the cause of action accrued while the plaintiff was incarcerated. The equitable

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tolling doctrine also tolls the statute of limitations while exhaustion occurs. Donoghue v. County

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of Orange, 848 F.2d 926, 930-31 (9th Cir. 1988); Addison v. State of California, 21 Cal.3d 313, 318

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(1978). Additionally whether an inmate is entitled to equitable tolling is decided by state law except

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to the extent that it is inconsistent with federal law. Jones, 393 F.3d at 927. Under California law

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equitable tolling is available where there is “timely notice, and lack of prejudice to the defendant,

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and reasonable and good faith conduct on the part of the plaintiff.” Daviton v. Columbia/HCA

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Healthcare Corp., 241 F.3d 1131, 1132 (9th Cir. 2001) (quoting Addison, 21 Cal.3d at 319).

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Equitable tolling applies “to suspend or extend a statute of limitations as necessary to ensure

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fundamental practicality and fairness.” Jones, 393 F.3d at 927 (quoting Lantzy v. Centex Homes,

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31 Cal.4th 363, 370 (2003)). Application of equitable tolling “requires a balancing of the injustice

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to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest

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or policy expressed by the . . . limitations statute.” Jones, 393 F.3d at 927 (quoting Lantzy, 31

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Cal.4th at 371)).

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C.

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Defendant argues that this action should be dismissed under Rule 12(b)(6) because Plaintiff’s

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claims are barred by the statute of limitations. Defendant argues that the applicable statute of

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limitations for personal injury actions was two years when plaintiff’s action accrued against

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defendant sometime between May and July 2004. Defendant asserts that under California law, the

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two-year statute of limitations is tolled for a period not to exceed two years while a person is

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imprisoned on a criminal charge. Defendant argues that because Plaintiff’s complaint against him

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was not filed until August 25, 2010, more than six years after the fact, the entire action against

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Defendant is time-barred.

Parties' Positions

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In opposition, Plaintiff asserts that Defendant has erroneously argued that the complaint for

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this action was filed on August 25, 2010, whereas the complaint was filed on July 7, 2008. Based

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on the July 7, 2008 date of filing, Plaintiff argues that his claims in this action accrued within four

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years of the date of filing. Plaintiff asserts that in July 2004, Defendant retaliated against him by
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threatening him for submitting an allegedly false declaration against a prison officer whom Plaintiff

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observed assaulting an inmate, and immediately thereafter Plaintiff was transferred to Building 250

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where Defendant worked. Plaintiff asserts that Defendant then set Plaintiff up to be murdered by

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other inmates and failed to protect Plaintiff from being stabbed, beaten, and bludgeoned. Plaintiff

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also asserts that in August 2004, less than thirty days after the attempted murder, he was transferred

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to another prison.

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Defendant "concedes that he erroneously argues in the motion to dismiss that [Plaintiff's]

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complaint was not filed until August 25, 2010 (which is the date when the second amended

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complaint was filed)." (Reply, Doc. 57 at 3 fn.1.) Defendant argues that the Court should

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nonetheless dismiss Plaintiff's retaliation claim which accrued prior to July 8, 2004. Defendant also

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requests that Plaintiff be required to provide a more definite statement as to when the alleged act of

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deliberate indifference occurred.

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D.

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Defendant has not adequately argued that the statute of limitations bars Plaintiff's claims.

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Plaintiff filed this action on July 7, 2008. (Doc. 1.) According to Plaintiff's Second Amended

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Complaint ("2ACP") upon which this action now proceeds, Plaintiff's claims of retaliation against

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Defendant arose between May 2004 when he arrived at ASP and August 2004 when he was

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transferred to MCSP. (2ACP, Doc. 26 at 9:14, 10 ¶29.) Plaintiff alleges that sometime after June

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2004, Defendant threatened him because he complained about another officer.2 (2ACP at 9 ¶¶21-

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22.) Plaintiff also alleges that Defendant "sabatoged" his legal and personal property in August 2004

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upon Plaintiff's transfer to MCSP. (2ACP at 10 ¶¶28-30.)

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indifference against Defendant arose between June and August 2004 at ASP when Plaintiff was

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assaulted by other inmates while Defendant stood by and failed to protect him.3 (2ACP at 10 ¶26.)

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Defendant argues that Plaintiff's claims arising more than four years before Plaintiff filed the

Discussion

Plaintiff's claims of deliberate

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In his Surreply filed on November 22, 2011, Plaintiff asserts that Defendant threatened him on or about
June 16, 2004. (Surreply, Doc. 59 at 2:9-10.)
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In his Surreply filed on November 22, 2011, Plaintiff asserts that the assault occurred on July 11, 2004.
(Surreply, Doc. 59 at 2:1.)

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Complaint on July 7, 2008 are barred by the statute of limitations. However, Defendant fails to

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allow for tolling while Plaintiff was exhausting his administrative remedies. Plaintiff declares that

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he began the appeals process at MCSP sometime during or after August 2004 and completed the

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process for all claims at issue in this action. (2ACP at 2 ¶II, 10 ¶31.) Defendant has not provided

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sufficient information about the time period during which Plaintiff exhausted his remedies. Without

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knowing the date Plaintiff filed his prison appeal and the date of the final decision, the Court cannot

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determine how long the time was tolled. The Court finds that Defendant’s evidence is not sufficient

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to support his argument that, under applicable law, Plaintiff’s suit is time-barred by the statute of

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limitations and applicable tolling, and therefore Defendant's motion to dismiss must be denied.

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IV.

CONCLUSION AND RECOMMENDATION
Based on the foregoing, the Court HEREBY RECOMMENDS that defendant Umphenour’s

motion to dismiss, filed on October 6, 2011, be DENIED.

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The Court further ORDERS that these Findings and Recommendation be submitted to the

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United States District Court Judge assigned to this action. Within TWENTY (20) days after being

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served with a copy of these Findings and Recommendation, any party may file written Objections

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with the Court and serve a copy on all parties. Such a document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file

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Objections within the specified time may waive the right to appeal the Order of the District Court.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
6i0kij

August 23, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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